Common Law Abandonment & Adverse Possession: A Call for Legislative Action
2008 County Engineers Workshop
Presented By:
Joel C. Tuoriniemi, JD
School of Business and Economics
Michigan Technological University
Common Law Abandonment
•Two Elements Necessary to Establish Common Law Abandonment of Land Dedicated to Public Use
–(1) An Intention to Relinquish the Property, and
–(2) Some Act of Circumstances Showing an Intention to Relinquish the Property
•Cheboygan Co Rd Comm v. Crawford (Mich App 1997)
–Rd Comm took jurisdiction of the road in the 1930s (McNitt Act); decertified the road in 1951
–By the 1970s, road had reverted back to natural state; brush and tree cover;“barely a two-track”
–Defendant then placed a trailer across the road
–“In decertifying the road, …the county effectively proclaimed that it no longer assumed the duty to maintain the road in reasonable repair. We view such a proclamation as the equivalent of relinquishing all control or rights to the road -- the essence of abandonment.”
–“…perhaps of most importance, the minutes of road commission meetings show that it did not recognize the extension as a county road and specifically declined to entertain a motion to recognize the right-of-way as part of the county road system.”
–“Although defendants had blocked access to the extension with a fence and used the right-of-way as pasturage and hunting grounds, there is nothing to suggest that the county took steps to stop this use of the land to prevent adverse possession.”
Dissenting Opinion
–“If a board of road commissioners could abandon a road and absolve itself from the responsibility to maintain it by simply no longer certifying the road, the detailed procedure for abandonment required by MCL 224.18 would be unnecessary. I would hold that the statutory procedure was the exclusive method by which a county road could be abandoned.”
•Elmhirst v. Cheboygan Co Rd Comm (Mich App 2002)
–Plaintiffs argued common law abandonment because Rd Comm did not extend graveled portion of a road into the disputed portion and because Rd Comm placed a “Road Ends” sign at the end of the graveled portion
–Rd Comm manager testified that the commission had no intent to abandon disputed portion of the road
–Ct noted that “nonuse alone is insufficient to prove abandonment”
–Ct also found that individuals used the disputed portion of the road as a footpath to the beach
–Common Law Abandonment claim was therefore rejected
•Ambs v. K’Zoo Co Rd Comm (Mich App 2003)
–Public roadway was severed by the construction of an interstate highway in 1951
–Rd Comm expressly abandoned through resolution that portion of the roadway which extended north of the highway.
–Although no declaration was made as to the portion of the roadway south of the highway, the defendants ceased to maintain it and no longer certified it for the purpose of receiving maintenance funds
–Rd Comm asserted that because the southern portion of the road had not been abandoned by resolution it remained a public roadway.
–Plaintiffs asserted that the southern portion of the road had been abandoned through nonuse
•Did enactment of MCL 224.18 (statutory abandonment) effectively repeal the common law abandonment doctrine?
–Rd Comm argued that a statute granted exclusive jurisdiction over roads to county road commissions and thus deprived the trial court of authority to decree that the road was abandoned.
–Ct held the statutory standard for abandonment by resolution did not repeal the common law doctrine of abandonment by nonuse
–The owners of adjacent private property had maintained the road, and had limited access to it to use as a private drive, with the acquiescence of the defendants.
–Further, the defendants had refused to recertify the road.
–Affirmed trial court ruling that common law abandonment had occurred
•Senate Bill 0472 (Passed by Senate only - June 2003)
•Purpose was to repeal common law abandonment claims by amending MCL 224.18
– “A board of county road commissioners has the exclusive jurisdiction to decide whether a road under its jurisdiction shall be absolutely abandoned and discontinued.”
–“This section abrogates application of the doctrine of common law abandonment that permits a road under the jurisdiction of a county road commission to be declared abandoned by reason of nonuse.”
•Dean v. Jackson Co Rd Comm (Mich App 2006)
–Rd Comm took jurisdiction of road in 1930s (McNitt Act); decertified in 1960
–Engineer and Chair both testify to lack of intent by Rd Comm to abandon the road
–Road meandered through plaintiffs' property and has been used as a private drive by plaintiff and adjacent property owners.
–Plaintiffs developed plans to create several buildable lots on their property
–Ct finds there has been no revision of the MCL 224.18, so common law abandonment continues to exist as a valid basis of abandonment even if the Rd Comm has not sought to abandon the road
–Courts still may determine if Rd Comm’s conduct has caused the public roadway to be abandoned
–Ct cited Rd Comm’s failure to certify or maintain the disputed portion of roadway, the private interests asserted over the road through gates and plowing, and the county's express denials concerning responsibility for and acquiescence to the plaintiffs' assertion of dominion and control over the roadway.
–Ct also found that "infrequent and minor maintenance" was insufficient to show a continuous claim of jurisdiction by the Rd Comm
Adverse Possession
•Generally, a claim of adverse possession may not be made against a governmental entity absent statutory authority
•Michigan law, in one form or another, has exempted municipalities from adverse possession claims since 1907.
•MCL 600.5821(2):
–“Actions brought by any municipal corporations for the recovery of the possession of any public highway, street, alley, or any other public ground are not subject to the periods of limitations.”
•Issue: Does a county road commission qualify as a “municipal corporation” that is immune from adverse possession claims?
•Keweenaw Co Rd Comm v. Brinkman (Mich App 2003)
–¼ mile road accepted into system in 1930s
–Defendant placed cable across the road, piled rocks and posted a “No Trespassing” sign
–Road had not been used by the public for over 40 years
–Trial court determined that the road became a public roadway under the highway by user concept and the road was neither abandoned nor decertified.
–Trial court further finds, however, that defendant has acquired ownership of the property through adverse possession
–Ct of Appeals cites an unrelated Supreme Court opinion and holds that a county road commission is not a “municipal corporation” and, therefore, not entitled to immunity from adverse possession claims
–Ct of Appeals further finds that the elements for adverse possession have been satisfied; Defendant is declared owner of the property
Dissenting Opinion
–Would have held that a county road commission is a “municipal corporation” within the meaning of MCL 600.5821(2). “I am not willing to make a major pronouncement on road law sua sponte based upon a minor comment by the Supreme Court in a case wholly unrelated to the issue at bar.”
•Troubling Decision
•Statute refers to streets, highways, etc., yet Brinkman majority holds that a road commission is not a “municipal corporation.”
•Dangerous Precedent for Road Commissions
Call for Legislative Action
•Consider the present legal environment
•Road Commissions are subject to common law abandonment and adverse possession claims, given current case law
•Legislation needs to be introduced to amend Michigan law
•Reintroduce bill from 2003 to abolish the common law abandonment doctrine; amend MCL 224.18
•Introduce legislation to amend MCL 600.5821(2) and give county road commissions the same protection from adverse possession claims currently afforded “municipal corporations.”